Holding

The omission of the Oath Commissioner’s endorsement in the true copy of the affidavit is not a material defect, and a mere spelling mistake does not defeat impleadment; therefore the petition cannot be dismissed on those grounds.

Summary

Ram Prasad Sarma, who lost the 1999 Lok Sabha election for Tezpur to Mani Kumar Subba, filed an election petition alleging booth‑capturing and rigging. The respondent moved to dismiss the petition under Section 86(1) on three grounds: the petition was filed beyond the 45‑day limitation, a candidate (Abu Khayer) was not correctly impleaded due to a spelling error, and the true copy of the affidavit served on the respondent lacked the Oath Commissioner’s endorsement, allegedly violating Section 81(3). The Gauhati High Court dismissed the petition only on the affidavit ground, holding the other two pleas untenable. The Supreme Court set aside that dismissal, holding that the omission of the Oath Commissioner’s name, stamp or seal in the true copy is not a material defect if the copy does not mislead the respondent, and that a mere spelling mistake does not defeat impleadment. The Court upheld the High Court’s findings on limitation and the spelling issue, allowing the election petition to proceed. The appeal was allowed and the High Court order dismissed.

Issues considered

Whether the absence of the Oath Commissioner’s endorsement in the true copy of the affidavit violates Section 81(3) of the Representation of the Peoples Act and warrants dismissal under Section 86(1).
Whether a typographical error in the name of a respondent amounts to non‑impleadment under Section 82, justifying dismissal of the election petition.
Whether the election petition is barred by the 45‑day limitation prescribed in Section 81(1).

Legislation cited

Code of Civil Procedure, 1908
Conduct of Election Rules, 1961s. Rule 64

Subjects

election petitionRepresentation of the Peoples Acttrue copy of affidavitOath Commissionertechnical defectlimitation periodimpleadment of partiesbooth capturingriggingsubstantive justice

Judgment

RAM PRASAD SARMA A
v.
MANI KUMAR SUBBA AND ORS.

OCTOBER 29, 2002

[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] B

Election Laws; Representation of the Peoples Act, 1951; Sections 81(1),
81(3), 82 and 86 (1):

Election Petition-True copy of the affidavit does not contain Oath C
Commissioner's endorsement-Petition dismissed by High Court for non-
compliance of provision of law- Correctness of-Held: In election matters
strict compliance of legal provisions is necessary-But purpose of law is not
to facilitate the returned candidate to avoid trial of issues of corrupt practices
on the basis of any little defect-Mere omission in indicating the name/ D
endorsement of Oath Commissioner would not be material when an averment
that affidavit was sworn in support of allegation of corrupt practices, signed
by the petitioner is available in true copy of the affidavit.

Election Petition-Necessary parties-lmpleadment of-Notice to one
of the candidates by incorrect name but at correct address-Effect of-Held, E
it is a case of spelling mistake, and of little consequence.

Appellant and respondents contested the Lok Sabha elections, 1999, in
which Respondent No.1 was declared elected. Appellant challenged the election
of Respondent No.1 on the ground of booth capturing and rigging. High Court
dismissed the petition on the ground that copy of the affidavit supplied to F
Respondent No.1 did not contain the affirmation by the appellant/Oath
Commissioner's endorsement, which amounts to non-compliance of Section
81(3) of the Representation of the Peoples Act, 1951 but it negatived the plea
oflimitation and non-impleadment of necessary parties. Hence these appeals.

Disposing of the appeals, the Court G

HELD: I. I. It is true that in the matters relating to elections and election
petitions, strict compliance of the legal provisions is necessary and full care
is to be taken to see that rights of an elected representative are not lightly
disturbed. But an election petition is not to be thrown at the threshold on the H
473
474 SUPREME COURT REPORTS (2002) SUPP. 3 S.C.R.

A slightest pretext of one kind or the other which may or may not have any
material bearing on the factors to be strictly adhered to in such matters. It is
substance not form which would matter. If it is permitted otherwise, the
returned candidate would only be in the look out microscopically for any kind
of technical lacuna or defect to abort the endeavour of the petitioner to bring
B to trial the issues relating to corrupt practices in the elections. The purpose
of the law on the point cannot be to allow the returned candidate to avoid the
trial of the issues of corrupt practices raised against him on the basis of any
little defect which may not result in any vital variation between the original
and the true copy so as to have the effect of misleading the returned candidate.
1484-G-H; 485-A, Bl
c TM Jacob v. C. Poulose and Ors., 119991 4 SCC 274 and Murarka
Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors., AIR (1964) S.C.
1545, followed.

Ani/ R. Deshmukh v. Onkar N. Wagh and Ors., 119991 2 SCC 205 and
D Sri T Phungzathang v. Sri Hangkhanlian and Ors., (2001) 5 SCALE 599,
relied on.

Dr. Shipra (Smt.) v. Shanti Lai Khoiwal, 11996) S SCC 181, overruled.

1.2. Mere omission of indicating the name of the Oath Commissioner
E or an endorsement in the true copy that the affidavit was attested by an Oath .
Commissioner bearing his stamp and seal etc. would not be material. Once
an averment is there that affidavit was being sworn in support of allegations
of corrupt practices and that the petitioner had put his signature thereon,
primafacie fulfilment of such a legal requirement is adequately reflected even
in ab~ence of name and seal etc. of Oath Commissioner in the true copy.
F " (487-E, Fl

1.3. In the Petition all the contesting candidates were impleaded as
respondents who had contested the election; that along with the election
petition, copy of Return of Election filed in Form 21E under Rule 64 of the
G Conduct of Election Rules, 1961 which contains the result of the election as
well as the list of candidates. The said list is on record and the name of
Respondent No. ll is indicated at Serial No. 7 having contested as an
independent candidate. It is thus evident that it is not as ifthe correct name
is not available on the record of the case. Apparently, it seems to be a case of
spelling mistake and it is of little consequence. 1488-D, E, Fl
H
R.P. SARMA v. MANI KUMAR SUBBA [BRIJESH KUMAR, J.] 475

K. Kamaraja Nadar v. Kunju Thevar and Ors., AIR (1958) SC 687; Shiv A
Chand v. Ujagar Singh and Anr., 119791 I SCR 520 and Gore/al Shakya v.
Maharaj Singh Yadav, 119951Supp.3 SCC 407, referred to.

2. The Judgment and order passed by the High Court dismissing the
Election Petition under Section 86(1) of the Representation of Peoples Act
for non-compliance with provisions of Sub-section (3) of Section 81 of the B
Act is set aside. The findings of the High Court repelling the two other grounds
relating to limitation and mention of incorrect name of Respondent No.11 are
upheld. (489-H; 490-AI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6593 of2002. C
From the Judgment and Order dated 18.8.2000 of Assam High Court at
Gauhati, in E.P. No. I of 1999 and C.M.C. No. 28 of2000.
WITH
S.L.P. (C) 21349/2002 CC. 8664 of2001.
D
U.N. Bachawat, Ms. Sumita Hazarika, U. Hazarika, for Shivaji M. Jadhav,
Alok Bachawat, Ms. Anajali Doshi, Ms. Ruchi Kohli and Sushi! Kr. Jain, for
the appearing parties.

The Judgment of the Court was delivered by
E
BRIJESH KUMAR, J. The appellant Ram Prasad Sarma and Respondent
No. I Mani Kumar Subba, amongst others contested election, for No. 9 Tezpur
Parliamentary Constituency, Assam in the elections held in the year 1999.
Respondent No. I Mani Kumar Subba was declared elected on 7.10.1999 from
the aforesaid constituency. The appellant who secured the next highest number F
of votes, challenged the election of Respondent No. I by filing an election
petition under Section 80 of the Representation of the Peoples Act 195 I on
the ground that large scale rigging and booth capturing had taken place at
the instance of Respondent No. I who adopted and resorted to corrupt
practices in the election, Hence, election of Respondent No. I was liable to be
declared void. It was also prayed that the appellant may be declared as duly G
elected candidate from No. 9 Tezpur Constituency. Notice was issued to the
respondents on the election petition.

The Respondent No. I Mani Kumar Subba on receipt of the notice,
moved an application under Section 86 of the Representation of the Peoples
Act 1.951 (hereinafter to be referred as the 'Act') praying for dismissal of the H
476 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.
A election petition at the threshold on three grounds, firstly that the election
petition was filed beyond a period of 45 days which is the prescribed period
of limitation for filing an election petition under Section 81 (I) of the Act. The
next ground was that where the election petitioner prays for a declaration in
his favour or in favour of any other candidate for having been duly elected
from the constituency all the contesting candidates have to be impleaded as
B respondents in the election petition. One Shri Abu! Khayer who had also
contested the election was not impleadcd as respondent instead one Abdul
Khyer was impleaded as Respondent no. I I. It amounted to non compliance
of Section 82 of the Act. Thirdly, the true copy of the affidavit served upon
the respondent No. I along with copy of the election petition does contain
C the attestation and stamp etc. ·of the Oath Commissioner. It violates Section r.
81 (3) of the Act.

The aforesaid relevant provisions may be perused, which read as
follows:-

D Section 81. Presentation of petitions-{I) An election petition
calling in question any election may be presented on one or more of
the grounds specified in [sub-section(!)] of Section 100 and Section
IOI to the High by any cand;date at such election or any elector
{'Nithin forty five days frrim, but not earlier than the date of election
of the returned candidate or if there are more than one returned
E candidate at the election and dates of their election are different, the •·
later of those two dates] t
Explanation .............................. .

********* .._
'
F
(3) Every election petition shall be accompanied by as many
,copies thereof as there are respondents mentioned in the petition and
every such copy shall be attested by the petitioner under his own
signature to be a true copy of the petition.

Section 82. Parties of the petition-A petitioner shall join as
G
respondents to his petition -
(a) Where the petitioner, in addition to claiming declaration that the
election of all or any of the returned candidates is void, claims
a further declaration that he himself or any other candidate has
been duly elected, all the contesting candidates other than the
H
R.P. SARMA v. MANI KUMAR SUBBA [BRIJESH KUMAR, J.) 477
petitioner and where no such further declaration is claimed, all A
the returned candidates; and

(b) Any other candidate against whom allegations of any corrupt
practice are made in the petition.

Section 83. Contents of petition-(1) An election petition-
B
(a) shall contain a concise statement of the material facts on which
the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the
petitioner alleged including as full a statement as possible of the
names of the parties alleged to have committed such corrupt C
practice and the date and place of the commission of each such
practice; and

(c) shall be signed by the petitioner and verified in the manner laid
down in the Code of Civil Procedure, 1908 (5 of 1908) for the
verification of pleadings. D
[Provided that where the petitioner alleges any corrupt practice, the
petition shall also be accompanied by an affidavit in the prescribed
form in support of the allegations of such corrupt practice and the
particulars thereof.)
E
(2) Any schedule or annexure to the petition shall also be signed by
the petitioner and verified in the same manner as the petition.

Section 86(1). Trial of election petitions-the High Court shall dismiss
an election petition which does not comply with the provisions of
Section 81 or Section 82 or Section 117." F
The appellant contested the plea of the dismissal of the election petition
under Section 86 (I) of the Act. According to him there was no non compliance
of any provision of the Act as alleged by Respondent No. I. The High Court
negatived the plea raised on behalf of the Respondent No. I for dismissal of
the election petition on the ground of limitation and non-impleadment of Abut G
Khayer as a respondent in the election petition. However, it was held that
copy of the affidavit supplied to the Respondent No. I does not contain the
affirmation by the appellant before the Commissioner of oath or the Oath
Commissioner's endorsement. On this ground it was held that there was non
compliance of Sub-section (3) of Section 81 of the Act. Hence, the petition H
478 . SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A was dismissed under Section 86(1) of the Act.
I.t may be mentioned here that Respondent No. I also filed S.L.P .......... .
(CC 8664/200 I) against the findings of the High Court rejecting the pleas
relating to limitation and non-impleadment of all the contesting candidates.
On the SLP ...... (CC 8664/2001) no order had been passed yet. The record of
B SLP is before the Court for its hearing with the appeal, it is submitted by
learned counsel for Respondent No. I that in any event the Respondent No. I
is entitled to support the order of dismissal of the election petition, in this
appeal on the aforesaid two other grounds as well, as involved in SLP ........
(CC 8664/200 I). We have therefore heard the learned counsel for both the
C parties on all the three pleas raised by Respondent No. I in his application for
dismissal of the election petition under Section 86 (I) of the Act. We may take
up first the plea relating to non supply of true copy of the affidavit with the
election petition to Respondent No. I on the basis of which it has been held
that it.violated sub-section (3) of Section 81 of the Act and order of dismissal
of the election petition has been passed by the High Court.
D
At the very outset it may be indicated that there is no dispute that the
original election petition bears the signatures of the Oath Commissioner
before. whom the affidavit was sworn by the petitioner. But in the copies
supplied to Respondent No. I though attested to be true copy, it does not
E indicate about the endorsement of the Oath Commissioner on the affidavit.
Therefore, the contention was that it was not the true copy of the affidavit
accompanying with the election petition ..

In support of the above contention, learned counsel for Respondent
No. I placed reliance upon decisions of this Court reported in [ 1996) 5 SCC
F 181-Dr. Shipra (Smt.) v. Shanti Lal Khoiwal, and (1997] 10 sec 294-
Harcharan Singh Josh v. Hari Kishan.

In the case of Dr. Shipra (supra) the fact position was that the true
copy of the affidavit supplied to the returned candidate, a respondent, did not
contaili' verification by the Notary who had attested the original affidavit filed
G along' with the election petition. The question which arose for consideration
was " ......... whether copy of the affidavit supplied to the respondent without
the attestation portion contained in it (though contained in the original
affidavit) can be considered to be a true copy"? It was held that verification
by a Notary or any other prescribed authority is a vital fact which assure.s
H that the election petitioner had affirmed before the Notary that the statement
R.P. SARMA v. MANI KUMAR SUBBA [BRIJESH KUMAR. J.) 479
containing imputation of corrupt practices was duly and solemnly verified to A
be a correct statement to his knowledge or information as specified in the
election petition and the affidavit filed in support thereof and the respondent
would not be misled on that score. Such an omission in the copy supplied
to the returned candidate as true copy is not a curable irregularity and
concept of substantial compliance will not be applicable. The other decision B
relied upon is Harcharan Singh Josh (supra). In this case one of the grounds
amongst or among others was that the affidavit supplied to the respondent
was not a true copy of the affidavit since it did not contain the affirmation
by the Oath Commissioner. This contention was upheld.

The High Court followed the decisions in the cases of Dr. Shipra and C
Harcharan Singh Josh (supra), while holding that the defect was not curable
and the election petition was liable to be dismissed on that ground.

The High Court has also referred to the decision of Three Judges Bench
of this Court reported in [1998) 2 SCC 31-T.M Jacob v. C. Poulose and Ors.
In this case the meaning of the word 'true copy' was considered in reference D
to furnishing of such a copy of the affidavit together with copy of election
petition .. This Court had thought it fit to refer the matter to a larger Bench
for re-consideration of _the. decision in the case of Dr. Shipra (supra). The
decision of the Constitution Bench in the case of T.M Jacob v. C. Poulose
and Ors. is reported in (1999) 4 sec 274. So far the fact situation is concerned, E
it may be indicated that in the end of the affidavit it contained the endorsement
by the appellant that the affidavit had been duly affirmed, signed and verified
by the Notary. Under the affirmation by the Notary, the words "Sd/- Notary"
were written but name address or the stamp and seal of the Notary were
missing. The Court considered the question as to whether the decision in the
case of Dr. Shipra (supra) would be applicable in the case or not."This Court F
held that decision in the case of Dr. Shipra (supra) would not be applicable
which was decided and confined to the fact situation as it existed in that case.
In Paragraph 33 the Court observed thus:

"Does the word ·copy' occurring in Section 81 (3) of the Act mean G
an absolutely exact copy or does it mean a copy so true that nobody
could by any possibility misunderstand it. This matter is no longer res
integra. In Murarka Radhey Shyam Ram Kumar versus Roop Singh
Rathore, a Constitution Bench of this Court elaborately dealt with this
question after referring to a catena of authorities. It was held that the
test to deterrn ine whether a copy was a true one or not was to find H
480 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A ·out whether any variation from the original was calculated to mislead
a reasonable person. The Constitution Bench found as untenable the
contention that since copies of the petition served on the returned
candidate did not contain the signatures of the petitioner below the
word 'petitioner' on the copies of the petition served on the respondent,
they had ceased to be true copies of the original petition, attracting
B the consequences of Section 86 (I) of the Act. The Bench opined:

. ;, "Having regard to the provisions of Part VI of the Act, we are of
the view that the word ·copy' does not mean an absolutely exact
copy. It means a copy so true that nobody can by any possibility
misunderstand it."
c
The fact situation in the case of Dr. Shipra (supra) is enumerated in Paragraph
16 of the judgment which reads as under:

"Thus, from the "facts" noted by Bharucha, J., it transpires that
in Dr. Shipra case the "true copy" of the election petition furnished
D to the respondent gave an impression that the election petitioner's
affidavit supporting his allegations of corrupt practice had not been
duly sworn and verified by the election petitioner before the Notary,
who also had not attested the same thereby rendering that document
'as "no affidavit" at all in the eye of the law. The defect found in the
E . '.'true copy" of the affidavit, was thus, not merely the absence of the
· name of the Notary or his seal and stamp but a complete absence of
"notarial endorsement" of the verification as well as absence of an
, ','affirmation" or "path" by the election petitioner. It was in that context
· that the Bench had found in Dr. Shipra case that the returned candidate
·'would have got the impression, on a perusal of the "true copy" of the
F ,_affidavit, that there was no duly sworn and verified affidavit filed in
support of the allegations of corrupt practice by the election petitioner.
It was precisely on account of this "fatal" defect that K. Ramaswamy,
J. opined that" the principle of substantial compliance cannot be
accepted in the fact situation".
G
On the question of substantial compliance the Constitution Bench in
T.M Jacob's case has further observed as follows:

"The object of serving a "true copy" of an election petition and
' the affidavit filed in support of the allegations of corrupt practice on
H the respondent in the election petition is to enable the respondent to
R.P. SARMA v. MANI KUMAR SUBBA [BRIJESH KUMAR, J.] 481
understand the charge against him so that he can effectively meet the A
same in the written statement and prepare his defence. The requirement
is, thus, of substance and not of form."

The expression "copy" in Section 81(3) of the Act, in our opinion,
means a copy which is substantially so and which does not contain
any material or substantial variation of a vital nature as could B
possibly mislead a reasonable person to understand and meet the
charges/a/legations made against him in the election petition. Indeed
a copy which differs in material particulars from the original cannot be
treated as a true copy of the original within the meaning of Section
81 (3) of the Act and the vital defect cannot be pennitted to be cured C
after the expiry of the period of limitation."

(emphasis supplied by us)

In the case of Anil R. Deshmukh versus Onkar N. Wagh and Ors., [ 1999]
2 SCC 205, a Bench of Three Judges considered the question .. The fact
situation in that case as enumerated in Paragraph 3 of the Judgment is as
D
under:

"When the copies of the petition, documents and .the affidavit
were served on the respondents, the copy of the affidavit did not bear
the endorsement of attestation found on the original or the seal or E
stamp of the attesting officer. The appellant signed below the rubber
stamp endorsement "attested as true copy". But for the absence of
the notarial endorsement, it was a true copy of the original as it was
a xerox copy. The first respondent and the tenth respondent raised
objections that the election petition should be dismissed in limine as
the provisions of Section 83(1) of the Act were not complied with." F
(emphasis supplied by us)

The Court in Paragraph 17 of the judgment dealt with the matter in reference
to the decision in Dr. Shipra 's case and held as under:
G
"Jn the light of the rulings of the Constitution Bench referred to
earlier, we have our own reservations on the correctness of the view
expressed in Dr. Shipra case but it is unnecessary in the present case
to dwell on the same.

H
482 SUPREME COURT REPORTS (2002) SUPP. 3 S.C.R.

A

We have already referred to the fact that even before arguments were
B heard on the preliminary objection by the High Court in this case, the
true copies of the affidavits had been served on the first respondent
and ~is counsel. In the facts and circumstances of this case, we have
no doubt that there was sufficient compliance with the provisions of
Section 81(3) read with Section 83(1) (c) of the Act.
c ''

D
It is thus clear that the correctness of broad proposition as laid in the
case of Dr. Shipra (supra), was doubte.d in the case of T. M. Jacob as well
as A nil R. Deshtnukh' case (supra). The Constitution Bench in T.M. Jacob's
case (supra) has indicated the correct position. Any defect of whatever
E nature, in the true copy supplied to the respondent would not render the
petition liable to be dismissed under Section 86 of the Act. Such defects in
supply of true copies are not always incurable. The main consideration which
would weigh is that the returned candidate must get a correct idea of the
allegations of corrupt practices so that it may be possible to understand and
F meet the charges levelled against him. The true copy supplied should also
reflect that the part of the petition containing the allegations of corrupt
practices has been verified and sworn by the petitioner on oath. The fact that
the name, stamp, seal and signature of the Notary are not indicated or missing
in the true 1copy is not material nor the absence of stamp of attestation by
the Notary. We will deal with the facts of this case in that regard a little later. .;;:___
G
We may now consider the Constitution Bench decision in the case of
Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and other
reported in AIR (1964) S.C. 1545 referred to in the case of T. M. Jacob (supra).
The two objections mainly raised by the returned candidate were that there
H was non-compliance of Section 81 (3) of the Act since copy of the election
R.P. SARMA v. MANI KUMAR SUBBA [BRIJESH KUMAR, J.) 483
petition served on the respondent was not true copy of the original filed A
before the Election Tribunal nor was it properly attested to be a true copy
under the signature of the petitioner. The other ground was that there was
non compliance of Section 83 of the Act since the affidavit in respect of
corrupt practices was neither properly made nor it was in the prescribed form.
The Court held as under:-
B
"H~ving regard to the provisions of part VI of the Act, we are of
the view that the word "copy" does not mean an absolutely exact
copy. It means a copy so true that nobody can by any possibility
misunderstand it. The test whether the copy is a true one is whether
any variation from the original is calculated to mislead an ordinary C
person. Applying that test we have come to the conclusion that the
defects complained of with regard to Election Petition No. 269 of 1962
were not such as to mislead the appellant; therefore there was no
failure to comply with the last part of sub-s. (3) of S. 81."

(Emphasis supplied by us) D
In respect of the other objection it was found that the Election Tribunal has
rightly pointed out that due to the inexperience of the Oath Commissioner
mistake had occurred in the verification part of the affidavit and he had
endorsed 'verified by me' instead of "verified before me". The signature of
the deponent had also been obtained on at a wrong place The verification E
was also not apparently in the prescribed form. It is observed that "the
mistake of the Oath Commissioner in verifying the affidavit cannot be a
sufficient ground for dismissal of the petitioner's petition summarily". It was
further pointed out that the defect can be remedied in accordance. with the
principles of Code of Civil Procedure relating to verification of pleadings F
accordingly even a correct affidavit could be filed later to rectify the defect.

In yet another decision reported in 200 I (5) SCALE 599-Sri T.
Phungzathang versus Sri Hangkhanlian and Ors., it has been held that the
case of Harcharan Singh Josh (supra) does not lay the correct law. It has
also been observed that an election petition accompanied by an affidavit has G
two parts out of which the verification part by the Oath Commissioner is not
an integral part of the petition and the affidavit. If the copy furnished to the
returned candidate does not contain the words as the true copy so far the
attestation part by the Oath Commissioner is concerned, it would not violate
the requirement of furnishing of true copy of the election petition and the
affidavit thereof. This is also a decision by Three Judge Bench rendered on H
484 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A considering the decisions in the cases of Dr. Shipra, Murarka Radhey Shyam
and T.M. Jacob (supra). It was held that in view of the two Constitution
Bench decisions in the case of Harcharan Singh Josh (supra) cannot be held
as laying down the correct law. The Court followed the decision in the case
of T.M. Jacob and Anil R. Deshmukh (supra). The fact situation of the case
was also quite akin to the case in hand. The allegations of corrupt practices
B were made. The original petition contains the affidavit with all necessary
endorsement and attestation by the Oath Commissioner. But the copy supplied
did not contain any such verification or affirmation. While ascribing additional
reasons in support of the decision, one of us (R.C. Lahoti, J.), who was a
member of the Bench observed that endorsement made by the officer
C administering oath to the deponent is not an integral part of the affidavit.
Preparing, signing and swearing of an affidavit are act of deponent;
administering oath and making an endorsement in proof thereof on the affidavit
are acts of the officer administering the oath. The former relates to fom1 of
an affidavit which the latter is mode and manner of swearing in an affidavit.
The latter part of the provision prescribes the person recognized by the Act
D or the Rules as competent to administer the oath to the deponent and his
endorsement is not an integral part of the affidavit.

From the various decisions noted above, it clearly emerges out that the
correctness of the decision Dr. Shipra 's case (supra) was doubted and it has
E been held by the Constitution Bench in the T.M. Jacob's case (supra) that it
was confined to the facts of that case. Therefore it cannot be said that Dr.
Shipra's case lays down any proposition of law of binding nature. The two
decisions of the Constitution Benches, namely, Radhey Shyam Murarka and
T. M. Jacob (supra) hold the field as well as the decision in the case of Sri
T. Phungzathang (supra). The law as laid down in the above noted decisions
F would be the guiding precedents in deciding a question relating to a true
copy of an affidavit.

The purpose of the provision to furnish a true copy of the petition is
not to frustrate the cause of the petitioner approaching the Court by adhering
strictly to technicalities of little consequence. On the other hand the anxiety
G is that the respondent must have correct idea of the allegations of corrupt
practices made against him with some responsibility and that he may not be
misled in any material respect by furnishing of a copy of the affidavit which
may not be a correct copy having vital variation from the original. It is true
that in the matters relating to elections and election petiticns, strict compliance
H of the legal provisions is necessary and full care is to be taken to see that
R.P. SARMA v. MANI KUMAR SOBBA [BRIJESH KUMAR, J.) 485
rights of an elected representative are not lightly disturbed and rightly so. But A
an election petition is not to be thrown at the threshold on the slightest
pretext of one kind or the other which may or may not have any material
bearing on the factors to be strictly adhered to in such matters. It is substance
not form which would matter. If it is permitted otherwise, the returned candidate
would only be in the look out microscopically for any kind of technical lacuna B
or defect to abort the endeavour of the petitioner to bring to trial the issues
relating to corrupt practices in the elections. The purpose of the law on the
point cannot be to allow the returned candidate to avoid the trial of the issues
of corrupt practices raised against him on the basis of any little defect which
may not result in any vital variation between the original and the true copy
so as to have the effect of misleading the returned candidate. As it is, the C
prevailing situation of elections and practices often said to be adopted now
and then and here and there does not always give a very happy picture. Free,
fair and fearless elections is ideal to be achieved and not to be defeated for
the sake of pretentious and frivolous technicalities.

Shri Bachawat learned Senior Counsel for the respondent vehemently D
urged that the fact situation of the present case and the case of Dr. Shipra
is the same and therefore, the High Court has rightly followed the decision
in the case of Dr. Shipra. We have already made our observations in this
regard. Jn any situation the matter has to be judged in the light of the
decisions of the Constitution Benches referred to above. There is no precedent E
on facts. It is legal proposition flowing from the Judgment which has bind~g
effect.

Learned senior counsel for the respondent then submits that in the case
in hand on the copy there is no stamp of the Notary, nor anything is
mentioned about attestation by him nor that the affidavit was verified before p
the Oath Commissioner and was signed by him (Oath Commissioner).
Therefore, it would be a different case from one in which in the true copy it
was indicated that the affidavit was signed by the Notary and in another case
where it was not so noted but copy of stamp of Notary may be there in the
true copy without indicating that the affidavit was verified or signed by the
Oath Commissioner as in those cases the returned candidate might know that G
the allegations relating to corrupt practices have been verified and attested
before the Oath Commissioner even thought it is not indicated in the true
copy that it was signed by the Oath Commissioner. We are unable to appreciate
the above· submission. Mere indication of the stamp of Oath Commissioner
without any indication in the true copy that the affidavit was attested before H
486 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A the Oath Commissioner and signed by him (Oath Commissioner) will have no
different effect from one where nothing is indicated about the stamp and
verification before the Oath Commissioner because it is not necessary that
mere stamp of.the Oath Commissioner must lead to the inference that the
affidavit was also sworn before and signed by the Oath Commissioner in
attestation thereof. Therefore, such a case would be at the same footing as
B where nothing is indicated regarding swearing of the affidavit before the Oath
Commissioner.

We may now consider the fact situation of the present case in relation
to attestation of the affidavit in support of the election petition before an Oath
C Commissioner. At the very outset, it may be indicated that the original election
petition in the end bears the stamp and due attestation and signature of the
Oath Commissioner. Above the stamp of the Oath Commissioner there are
signatures of the petitioner above the word 'deponent'. Before that on Page
25 of the petition, a full verification of the affidavit has been made. Pages 25
and 26 of the petition are as under:
D
Page 25

"AFFIDAVIT'

I. That I am the instant petitioner in this case and as such I am
E acquainted with the facts and circumstances of the case for the
purpose of swearing this affidavit in support of the contention
of the corrupt practices taken recourse to by Respondent No. I
and Respondent No.7 more particularly by the respondent No.I,
Congress candidate who has been declared elected.

F 2. That the statements made in paragraph I of this affidavit is true
to my knowledge.

3. That the statements made in paragraphs I, 4, 8, 9, I 0 and 11 of
the body of the petition are true to my knowledge and those
made in paragraphs 2, 3, 5, 6, 7, 12 and 14 of this petition are true
G to my information based on records and further statements made
on the body of the petition are true to my information gathered
from polling agents of those Legislative Assembly Constituency
segments numbering 40 in its segments whose appointment letters
have furnished to the polling officers of 40 polling centres of
each L.A. Constituency/Segments
H
R.P. SARMA v. MANI KUMAR SUBBA [BRIJESH KUMAR, J.] 487

Page 26 A
mentioned in the body of the petition and the rest are grounds
and submission before this Hon'ble Court.

And in witness whereof, I put my signature on this 20th day of
November 1999 at Guwahati. B

Identified by Sd/- ..

Sd/- (Ram Prasad Sarmah)

(Sun Barman) Deponent
c
(Advocate's Clerk)

20. I 1.99 SEAL

OATH COMMISSIONER"
D
The only grievance is that the stamp and the name of the Oath
Commissioner is not indicated in the true copy of the affidavit. We feel that
if it was there it would have been better but absence of stamp and the name
of Oath Commissioner will not be a vital or material deviation from the original
nor it may in any manner mislead the returned candidate. Prima facie on E
perusal of the heading of the affidavit and detailed verification of the contents
of the paragraphs, as indicated above, would normally lead one to believe that
the averments have been made on affidavit. In Paragraph one of the affidavit
there is a specific mention that the petitioner was acquainted with the facts
of the case for the purpose of swearing of the affidavit in support of contention
of corrupt practices taken recourse to by Respondent No. I and respondent F
No.7. In the end the petitioner signs as 'deponent' and he is identified by
Advocate's Clerk. That being thP. position, mere omission of indicating the
name of the Oath Commissioner or an endorsement in the true copy that the
affidavit was attested by an Oath Commissioner bearing his stamp and seal
etc. would not be material. Once an averment is there that affidavit was being G
sworn in support of allegations of corrupt practices and that the petitioner
had put his signature, thereon, prima facie fulfillment of such a legal requirement
is adequately reflected even in absence of name and seal etc. of Oath
Commissioner in the true copy.

Learned senior counsel Shri Bachawat then referred to two other points H
488 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A raised by Respondent No. I but repelled by the High Court. So far the first
point is concerned, about the petition being time barred, he has very fairly
given up the said point on being indicated referring to the original that the
petition was filed on November 20, 1999 and not on 28.11.1999.

The only other point which remains to be considered is that in the
B election petition name of Respondent No. I I has been indicated as "Shri
Abdul Khyer'" Nij Biswanath, Biswanathghat, District Sonitpur, Assam."
According to Respondent No. I Abu! Khayer is the person who had contested
the election but he has not been impleaded as a party inste:ad some Abdul
Khyer has been impleaded. The submission is that all the candidates who
C contested the election have thus not been impleaded as mandataorily required
under Section 82 of the Act i.e. in cases where the petitioner prays for being
declared as a successful candidate in the election. The High Court rejected
the contention holding that the petitioner intended to implead Abu( Khayer
as Respondent No. I I to the election petition but it was only a mistake in
spelling by reason of which he has been described as Abdul Khyer. Reliance
D was placed upon a decision of Orissa High Court reported in /LR (1981) I
Cuttack 39 (43)-Morsingh Tripathy v. Gurubaru Majhi and Ors.

It may be noted that in Paragraph I of the Election Petition it has been
mentioned that the respondents were the contesting candidates from 9-Tezpur
E Parliamentary Constituency that is to say that Respondent No. I I was also
impleaded as one who had contested the election from the sa.id constituency.
There was every intention to implead such a person as a respondent. It may
then be noted that along with the election petition, copy of Return of Election
is required to be filed in Form 21 E under Rule 64 of the Conduct of Election
Rules 1961. It contains the result of the election as well as the list of candidates.
F The said list is on record as Annexure I to the election petition filed by the
petitioner and the name of Abu! Khayer is indicated at Serial No.7 having
contested as an independent candidate. It is thus evident that it is not as if
the correct name is not available on the record of the case. Apparently, it
a
seems to be case of spelling mistake. Instead of Abul letter 'd' got added
extra hence typed as Abdul in the array of parties and the spelling of Khayer
G as 'Khyer' omitting 'a' after 'kh'. It is to be noted that address of Respondent '"
No. I I is also indicated in the petition. It is ncit disputed that it is the address
of the person who contested the election. In this Court there is an office
report of service of notice on .i:espondent No. 8 prepared on the basis of the •
report received from tht; Gauhati High Court. So far wrong spelling of Khyer
H is concerned it is of little consequence. Both words "Khyer" and "khayar"
R,P. SARMA v. MANI KUMAR SUBBA [BRIJESH KUMAR, J.] 489

would produce almost the sim1e sound. Technically there may be difference A
but by way of example some may spell 'Banerjee' as 'Banerji' or 'Saksena'
as 'Saxena' or the like. Therefore such difference in spelling ofKhayar is but
to be ignored. There is certainly some difference in 'Abul' and 'Abdul' but
there is ample material on record to indicate that the same person who had
contested election was meant to be impleaded e.g. the address of the person, B
the averment that the Respondents 7 to 18 had contested the election as well
as the form of election return indicating names of all those who had contested
the election and the names with correct spelling is on the record namely 'Abu!
Khayar' . The respondent therefore gets no advantage out of above-noted
point sought to be made out. The parties have however placed reliance on
certain decisions on the point. On behalf of Respondent No. I reliance has C
been placed on Gore/al Shakya v. Maharaj Singh Yadav, [1995] Supp. 3 SCC
407 wherein Respondent No.IO was shown as Sanjay Kumar whereas correct
name should have been Sanjiv Kumar. Similar arguments seems to have been
advanced that notice was not served on the correct respondent and the
person who ought to have been impleaded, has not been impleaded. The High
Court dismissed the petition for non compliance of Section 82(a) of the Act. D
This Court upset the decision of the High Court observing that High Court
had made a mountain out of a mole hill as it was a mere typographical mistake.
Then this Court noted that in the body of the petition at one place his name
was indicated as Sanjiv Kumar and at another place his name was indicated
as Sanjay Kumar. It is submitted that in the present case no application for E
correcting the name was moved nor any written objection was filed to indicate
that it was a typing error. We feel that absence of any such application will
not adversely affect the petition for the reasons we have already indicated
earlier. Anoth:!r case relied upon by the learned counsel for the respondent
is reported in AIR (1958) SC 687-K. Kamaraja Nadar v. Kunju Thevar and
Ors. This is a case relating to non-joinder of necessary parties. We are not F
concerned here with such a .point. This case therefore would be of no help
to the respondent. The learned counsel for the appellant relies upon a case
reported in [1979] I SCR. 520-Shiv Chand v. Ujagar Singh and Anr. to
indicate the approach which the Court may adopt while dealing with a case
under Section 86 (I) of the Act. It is observed that the test is whether the G
election petition complies with provisions of Section 82, not whether the
election petitioner has failed to comply with Section 82. The substance of the
matter must govern, because hyper technicality when the public policy of the
Statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat
the vital judicial process, namely, investigation into the merits of the case. We
find no force in this point too raised by Respondent No. I. No other point has H
490 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A been urged.
In the result, we allow the Civil Appeal No. 6593 of 2000 and set aside
the judgment and order passed by the High Court dismissing the Election
Petition unde~ Section 86 (I) of the Representation of Peoples Act for non-
compliance with provisions of Sub-section (3) of Section 81 of the Act. The
B findings of the High Court, however, repelling the two other grounds as raised
by the respondent No. I relating to limitation and mention of the name of
Abdul Khyer cas respondent No. 11 are upheld. This disposes of SLP (C)
21349/2002 (CC 8664/01) also accordingly.

Costs of the proceedings to be borne by the respondent No. 1.
c
S.K.S. Appeals disposed of.